Carter v. Graves

7 Miss. 9

• Court: Mississippi Supreme Court
• Decided: December 15, 1841
• Status: Published

Opinion

Mr. Chief Justice Sharkey

delivered the opinion of the court. On the 28th of November, 1838, the appellant recovered a judgment against John M. Graves for the sum of $9,213, and sued out a fieri facias thereon, which was levied on eleven negroes found in the possession of the appellee, who claimed them as his property, and gave bond to try the right according to the statute. An issue was tendered by the plaintiff in execution, on which issue was joined, and a verdict found for the appellee. The questions for determination are presented by a bill of exceptions taken by the appellant, on the overruling a motion for a new trial.

It becomes material, in the first place, to define the precise attitude of the case, as it is presented to us by the record; and by so doing, Ave shall be enabled to direct our inquiries to such points only, as are necessarily involved. With a view no doubt to a full and fair investigation of the Avhole case, the discussion has been extended to questions Avhich do not, as we think, properly arise. Seven charges were asked of the court by Carter, the plaintiff in the execution. They were all given without objection on the part of Graves. In this respect, no error can be complained of as having been committed by the court in giving these charges, either because they Avere too restricted or too broad. " The appellant had the full benefit of the instructions as they were asked. The bill of exceptions Avas taken to the judgment of the court, in overruling a motion for a new trial, and it is only as an application for a new trial that we can consider of the case. In doing this, we shall necessarily have to determine how far the verdict conforms to the charges of the court; and, to some extent, the legality of the charges may in this way become the subjects of investigation. The reasons assigned for a neAV trial are seven in number:

First: That the claim of Joseph B. Graves is based upon a transcript called the record of a judgment, which, if valid, was shown by the proof to be fraudulent, and is therefore void, and

Second: The transcript has no one characteristic of a judgment, and is not one.

These reasons do not require separate notice, as they both relate to the admissibility of the judgment. When the claimant offered this judgment in evidence, it was objected to, but the objection was waived, and it was “agreed that it should go before the jury for what it was worth.” Under this agreement, it is now too late to object to its admissibility. Letting it go for what it was worth was giving it to the jury without qualification. No evidence can go to a jury for more than it is worth, and none should go for less. When it is admitted in this Way by consent, the jury are authorized to give it just so much weight as they may think proper. How much they may have considered it worth cannot be known, and is not therefore a good reason for a new trial.

Third: That the proof made out a prima facie case of fraud;' and there was no evidence to rebut the presumption of fraud, as the only rebutting proof calculated to remove the presumption, consisted of the testimony of John M. Graves.and S. A. D. Graves, who, by establishing the validity of the sale to Joseph B. Graves, shewed themselves to be interested as distributees of Joseph Graves, deceased, of whose estate Joseph B. Graves was executor, and the debt which the property was sold to pay being due to him in that right; and also because this testimony was admitted against the objection of the appellant. This is the substance of the third and principal reason for a new trial, to which may be added the fourth and fifth, which constitute but parts of the same question, to wit:

Fourth: If the jury were influenced by the testimony of those two witnesses, their verdict rests upon illegal testimony, and must be set aside; and

Fifth: If they were not so influenced, there is no testimony upon which it can rest, and it must therefore be set aside.

The foregoing reasons present two questions; first, what interest will render a' witness incompetent? and, second, when must the objection be made?

1. John M. Graves was the only witness who explained the whole of the transaction. By the plaintiff in the execution, it was fully proven that he, Graves, brought the negroes to this state in 1836, and had continued to hold possession of them until shortly before the levy. He had claimed and spoke of them as his own, and they were so understood to be by every one, even by his partner in the farm. The claimant, in support of his title, after the appellant had closed his testimony, introduced in the first place a bill of sale for the negroes, from John M. Graves, dated the 2d of April, 1838; but, as he had retained possession long after the date of the bill of sale, further proof became necessary to rebut the presumption of fraud arising from this circumstance, and accordingly John M. Graves was introduced to prove the fairness of the transaction. He testified that he sold the negroes to pay a just debt, which had been contracted with his father, Joseph Graves, in his lifetime, for money loaned, and that the bill of sale was free from the taint of fraud. The title which vested in Joseph B. Graves was as executor of his father, and the witness was one of the distributees. This circumstance is urged as a disqualification of the witness, as the property became, by the'sale, a part of the estate out of which he was entitled to distribution. On the other hand, it was contended that his interest was balanced, or neutralized, since if the sale to his brother prevailed, he was discharged of a debt to the value of the negroes; and if they were liable to the execution, they would still go in payment of a debt to the appellant.

An interest to render a witness incompetent must be direct in the event of the suit; or, if he can avail himself of the verdict by giving it in evidence in a future cause in support of his interest, he is incompetent. Roscoe on Evidence, 81. Thus it is said the residuary legatee is incompetent in a suit brought by the executor to recover a debt due the testator. Id. 82. The interest in such case is quite apparent. The amount recovered, even if applied in discharge of specific legacies, would enlarge the residue of the estate. A distributee is incompetent for the same reason. By enlarging the fund to be distributed, he swells his portion, and although it be increased but an inconsiderable amount, it makes no difference; it is the certainty of interest, and not the amount, which disqualifies. And it must also be a present, vested interest; not doubtful, or depending on mere possibility. An insolvent debtor is not a competent witness, where his testimony would increase the general fund. Wherever the effect of the verdict is to increase or diminish a fund in which the witness has a joint interest, he is incompetent. 1 Starkie, 105. John M. Graves being a distributee, was entitled to a portion of the fund created by establishing the validity of the sale, and it was a direct, present, vested interest, and unless there was a countervailing interest, he was incompetent. Where the interest is neutralized by an exact equipoise, the ineompetency ceases; but if there be conflicting interests, one of which preponderates over the other, the difference constitutes an absolute interest, which renders the witness incompetent. 1 Starkie, 119.

It would be perhaps difficult, in this instance, to say whether the countervailing interests were so exactly equipoised as to remove the supposed bias. The sale was for a certain sum; at sheriff’s sale property might sell for a greater, or perhaps more frequently at a less, price than it would bring at private sale. Hence a state of doubt might arise in the mind of a witness calculated to superinduce a bias. For this reason the competency of the witness was at least doubtful. But suppose his interest was exactly balanced by paying as much of his debt to the appellant as he was to receive from the claimant, still there is a preponderating circumstance. In selling the negroes he paid a debt of six-thousand one hundred dollars, and he added eleven negroes to an estate out of which he was entitled to distribution. He was entitled to receive back a portion of the negroes so sold. In the one case he paid so much, and received part of the property back; in the other case, suppose the same sum was paid, still nothing was received back. This was sufficient to turn the scale against his competency, and it is no answer to say that a previous distribution of the estate had taken place. A new fund was created, which would entitle the distributees to a second division. If John M. Graves had received his full portion of the estate, including this addition — or if Joseph B. Graves had received this debt as a part of his portion, and had by that means acquired an individual right to these negroes — then, of course, the objection could not be successfully urged; but the record does not satisfactorily show that John M. Graves had received a full portion, including the sum of money due from him; and it is distinctly stated that Joseph B. Graves purchased the negroes as executor, and that they became a part of the estate of his father. Although the legal title may have vested in him individually, yet he was evidently -a trustee for the distributees, which would leave the interest without material change.

The testimony of S. A. D. Graves is liable to the same objection. He was also a distributee of his father’s estate, and entitled to a portion of the negroes, if the sale should be established. On the ground of incompetency, both of these witnesses might have been excluded; and this brings us to the other branch of the inquiry, to wit:

2. When must the objection to competency be made? Neither of the witnesses were sworn on their voire dire, but at the outset of the examination, John M. Graves was asked if he was the same person who made the bill of sale, and if he was brother to the claimant? He answered in tire affirmative, and thereupon the plaintiff in the execution objected to his -competency. This objection was made at the proper time; but it was made for reasons, as it would seem, that were insufficient. His incompetency on the score of interest, as distributee, was not drawn in question; and the objection which was taken was properly overruled, if it was predicated, as we may suppose, on an affirmative answer to either of the interrogatories propounded. But, on his cross-examination, he explained fully the whole transaction, and then, it was that he stated that the sale was made to satisfy a debt due to his father’s estate, which had been matured into a judgment in favor of his brother, as executor.' This explanation was made after he had been examined in chief, and after he had stated that the sale was made for a full consideration and without fraud. Under this disclosure of interest, after the examination had been concluded, the competency of the witness, on the ground of interest, was objected to, and the court was asked to instruct the jury that if the sale to Joseph B. Graves was bona fide, as executor of Joseph Graves, deceased, and to pay a debt due to the deceased, then the negroes would belong to the estate, or to the children of the deceased, and that they could not be witnesses, and the jury must reject the testimony of J. M. and S. A. D. Graves — which instruction the court gave, and the question is, could the plaintiff in execution make the objection at this stage of the proceeding.

The original rule was, that an objection to competency ought to be taken previous to an examination in chief, either by an examination of the witness on his voire dire, or by showing his interest by other evidence; but by the later practice this rule has been much relaxed, and if the interest is discovered at any time during the trial, the evidence may be struck out. 1 Starkie on Evidence, 122; Roscoe on Evidence, 80. After the trial, it is too late to object to the competency of a witness on a motion for a new trial, if the testimony was permitted to go to the jury without objection. The objection is supposed to have been waived by the party against whom it was given. 1 Wash. C. C. Rep. 440; 5 Cowen, 173; 9 ditto, 140; 1 T. Rep. 717. It would be manifestly improper to allow the objection, made for the first time on an application for a new- trial, because the party then cannot obviate the objection by release or discharge, as he might have done if it had been taken in time. An advantage may, indeed, be obtained by omiting to make the objection in an early stage of the trial; but this, in many instances, cannot be avoided. The interest of the witness is frequently not discovered until he is cross-examined, and it would operate as a hardship in such cases to deprive the party of his objection. If the interest be known to him, it must be urged at the beginning of the trial. In this case the objection was not made at the moment the interest was discovered, and may therefore seem to fall short of the rule; but it.was taken in the only manner that the objection could have been made. The witness had been examined by the claimant, and had stated the nature and fairness of the contract to the jury. There was no remedy for this but to tell the jury to disregard it, and this could be as well told them at the time of giving the charge as when it was first discovered. If the objection had been taken by counsel at the moment it was discovered, it could only have been done by telling the jury to disregard the evidence, and the efiect must be precisely the same, when they are so told before they have retired to consider of the evidence. The object is to prevent the influence of the evidence, and, when it has already been given, it can be counteracted only by telling the jury that in their deliberations they must disregard it. If this be done at any time before the jury retires, and they obey the instructions, then, of course, the object is accomplished. And as it is their duty to follow the instructions of the court in rejecting the evidence, if it becomes manifest that they did not do so, a new trial is the proper remedy.

The question here presented is fully met by the decision in the case of Baldwin v. West, in which the court declared that “objections to the competency of witnesses never come too late, but may be made at any stage of the cause.” Hardin’s Rep. 50. And in the case of Turner v. Pearte, 1 Dun. & East. 717, the admission is clearly made that the objection may be raised at any time during the trial, in case it should turn out that the witness is interested. In that case the motion for a new trial was made on the ground of the incompetency, which was refused, because it was not objected to at the trial. To the same effect is the rule laid down by Starkie. He says, “When it is discovered incidentally, in the course of a cause, that the witness is interested, his evidence will be struck out, although no objection has been made to him on the voire dire” 1 Starkie on Evidence, 124. The case of Buching v. Gower, 3 Eng. Com. Law Rep. 117, may appear to militate against this well established rule; but it does not, as I conceive, when rightly understood, produce the slightest conflict. The parties had closed their case, when the chief justice called up a witness (who had been examined and cross-examined) for the purpose of asking him a question, and from his answer a doubt arose upon his interest, and a re-examination was claimed for the purpose of showing his incompetency, but it was refused. The obvious reason was, that the parties had closed their case and would not be allowed to open it. The judge admitted that the objection might be taken at any time during the examination, but remarked that “when the witness leaves the box, there is an end of all questions to his competency;” by which I understand only, that the cause cannot be opened and the witness again examined as to new facts; but I do not understand that his previous disclosures are no longer the subject of comment. If the incompetency of a witness appears from the examination on his voire dire, or if it appears in the opening of his testimony, then, of course, he is to be excluded, and not allowed to testify further. But if he has gone through his testimony, the remedy is by directing the jury to disregard it. This, I think, can be as well done when the court comes to charge the jury as before. The trial is still in progress, and it may be truly said in such case, that the objection was taken during the trial. The objection in this case was so taken, and we think it was in time.

What is the effect on the case? The court charged the jury that leaving possession with the vendor was prima facie evidence of fraud. We cannot say that it was less than prima facie evidence of fraud, and the state of the case does not require us to say that it was more. Being a prima facie case of fraud, the onus probancli, to prove the honesty and fairness of the sale, was thrown upon the claimant. To do this, John W. Graves was introduced, and he was the only witness who explained it. The testimony of S. A. D. Graves, even if it were unobjectionable, does not strengthen the claimant’s case, and, stript of the testimony of those two witnesses, it presents a case of fraud made out by prima facie evidence which is wholly unexplained and unrebutted. If there was conflicting testimony left, there might still be grounds for refusing a new trial; but there is not. Hence the last reason assigned for a new trial becomes apparent, to wit: That the verdict of the jury was contrary to the evidence and the law of the case. By law the evidence of the two Graves’s was incompetent, and they were bound to reject it — but it is mam ifest that they did not; or if they did, then there was no evidence to support the verdict, and it is therefore contrary to evidence, and should have been set aside.

Judgment reversed, and a new trial granted.